On Wednesday, Cardinal George Pell lost his appeal to overturn a conviction of child sexual assault.
Chief Justice Anne Ferguson, Justice Chris Maxwell and Justice Mark Weinberg of the Victorian supreme court published their reasons in a 323-page judgment, along with a seven-page summary.
Ferguson and Maxwell found that the jury’s initial verdict was not unreasonable, while Weinberg, in dissent, said it should be overturned. Below are the excerpts that best summarise why and how that judgment was reached.
Published in The Guardian
Pell was found guilty in February of child sexual assault and his team appealed the decision on three grounds. The first, and most important, ground was that the jury’s conviction was unreasonable and could not be supported by the evidence.
If the judges found this was the case, they could have quashed Pell’s conviction. Instead, on Wednesday, they dismissed this appeal by two to one.
The second and third grounds were that Pell’s defence team should have been able to show a 19-minute animation in their closing address, and that Pell should have been able to enter his plea before the jury in person, rather than via video link. These two were dismissed by all three judges unanimously.
In making their decision, the judges watched more than 30 hours of video recordings, and read 2,000 pages of interview transcripts, while also visiting St Patrick’s Cathedral in the same way the jury did.
‘A witness of truth’
Ferguson and Maxwell found the victim was credible. In their judgment, he is described only as “A”.
Pell’s defence team made two arguments: that the victim was “a cunning and calculating liar” who made things up to fill gaps in his story, and that his testimony “was all a fantasy, a product of his imagination”.
In their summary, the justices described him as “a very compelling witness, [who] was clearly not a liar, was not a fantasist and was a witness of truth”.
In their judgment they went into more detail, saying that: “We saw nothing in A’s answers under cross-examination to suggest that he had been caught out or had tripped himself up. And, where his responses involved any alteration of – or addition to – what he had said previously, the changes seemed to us to be typical of what occurs when a person is questioned on successive occasions, by different people, about events from the distant past.
“A further indication of A’s credibility, in our view, was his admitted uncertainty about a number of matters, which, if the story had been invented or was an entrenched fantasy, he might have been expected to describe with confidence.
“Striking examples of this were: his uncertainty about whether Cardinal Pell closed the door in the first incident; his lack of recall as to whether he had screamed or called out during the first incident; and his uncertainty about which hand Cardinal Pell had used in the second incident.
“A said he could not recall whether it was closed or not. He thought it was not ‘wide open’. In our view, the jury could properly reason that a person fabricating a story would have been more likely to say that the door was closed.
“To similar effect was A’s evidence that Cardinal Pell had not ordered the boys to keep quiet about the first incident. This might also be thought to be somewhat surprising. A juror might well have assumed that, if such conduct had occurred, the perpetrator would have been likely to threaten the victims into silence … In final address, senior counsel for Cardinal Pell submitted that, if it were a true story, Cardinal Pell would have taken the boys to his office and locked the door.
“[But] in our view, the jury were also entitled to view this aspect of A’s account as supportive, rather than destructive, of his credibility. The fact that his account of the incident did not include the making of any such threat tended against the contention that he had made it up.”
The wine and the sacristy
The victim recalled two specific details that the judges found convincing.
“The credibility of his account was considerably enhanced by the accuracy of his description of the priests’ sacristy. He was able to describe in some detail the layout and furnishing of the alcove where he and B were discovered by Cardinal Pell. As the Crown pointed out, A correctly placed the wine area in the alcove, not where it is currently located.
“More striking still was the fact that A identified the priests’ sacristy as the setting. At all other times, Cardinal Pell would have robed – and disrobed – in the archbishop’s sacristy. Exceptionally, however, that sacristy was temporarily unavailable at the end of 1996 because its furniture was under repair. As a result, Cardinal Pell was – at the time of the alleged offending – having to use the priests’ sacristy to disrobe after mass.”
The robes were ‘capable of being manoeuvred’
Part of Pell’s appeal was that it was physically impossible for him to move his heavy cardinal’s robes in the way the victim alleged.
His defence produced evidence from the prefect of ceremonies, Charles Portelli, and the sacristan Maxwell Potter that it was not possible to pull the cardinal’s robes to the side.
The jury had access to the robes and found they could be moved. Ferguson and Maxwell said this was reasonable – even with the cincture “firmly tied at the waist”. They said in their summary: “The robes were an exhibit at the trial and had been available to the jury in the jury room during their deliberation.
“Having taken advantage of the opportunity to feel the weight of the robes and assess their manoeuvrability as garments, the chief justice and Justice Maxwell decided that it was well open to the jury to reject the contention of physical impossibility.
“The robes were not so heavy nor so immoveable as the evidence of Monsignor Portelli and Mr Potter had suggested. The chief justice and Justice Maxwell found that the robes were capable of being manoeuvred in a way that might be described as being moved or pulled to one side or pulled apart.”
Not improbable enough
Pell’s defence also argued that it was improbable that the abuse could have occurred in such a public place. Ferguson and Maxwell said though it was unlikely, there was not enough improbability to overturn the jury’s decision.
“These were powerful arguments. It was, of course, highly improbable that someone in Cardinal Pell’s position would have acted in the way alleged … There was a high risk of discovery; there was a high risk that one or other of the boys would cry out; and there was a high risk that they would report him. The risk to his reputation, and position, was enormous.”
However, the judges made reference to other cases, where priests and teachers committed assaults in their offices, in front of other people who could have detected them, and even in class.
“As is illustrated by the proven allegations of repeat offending by a high-profile defendant in Hughes v The Queen, sexual offending does sometimes take place in circumstances carrying a high risk of detection.
“This jury rejected the improbability arguments. In our view, it was reasonably open to them to do so. We are not persuaded that there was anything about A’s account of the incidents which was so inherently improbable as to require the jury to entertain a doubt.”
‘Reservations about the reliability of Portelli’s answers’
The defence also appealed that the timing was impossible, relying on the evidence of Portelli.
Pell’s team argued he was “never left alone while he was robed and that on 15 and 22 December 1996 he remained on the cathedral steps after mass talking to parishioners, such that he could not have been in the priests’ sacristy as alleged”.
But Ferguson and Maxwell found that Portelli’s evidence did not necessarily contradict the victim’s, or make it impossible.
“[Portelli] did not have any independent recollection of the particular Sundays in December 1996. Although he had affirmed propositions put to him in cross-examination, he could not – unprompted – answer questions about those occasions.
“In our view, Portelli’s evidence – taken as a whole – did not compel the jury to have a doubt about A’s evidence. On the contrary, in our view, the jury were entitled to have reservations about the reliability of Portelli’s affirmative answers under cross-examination.
“Portelli properly accepted the possibility that Cardinal Pell might on occasion have stayed on the cathedral steps only ‘for a short period of time before returning to the sacristy’. He also accepted that there may have been occasions on which he did not himself accompany the cardinal back to his sacristy after mass and that, even if he had escorted the cardinal back, he might not have gone into the priests’ sacristy with him.
“The jury were entitled to view those answers, and the evidence more generally, as leaving open the realistic possibility that Cardinal Pell was ‘alone in the sacristies only a few minutes after the end of mass’. It was possible that on either 15 or 22 December 1996 he did not stay on the front steps for long.”
However, Weinberg took a different view, both on the credibility of the victim, the credibility of Portelli and the issue of improbability.
Weinberg wrote that while these events were possible, multiplying their improbability made the sequence of events so unlikely as to overturn the decision.
“[Pell’s team] submitted that each and every one of a number of independently ‘impossible’ things would had to have occurred within the very same limited time period (10 minutes or so) if the complainant’s account were to be accepted.
“In that event, the odds against the complainant’s account of how the abuse had occurred would have to be substantial. The chances of ‘all the planets aligning’, in that way, would, at the very least, be doubtful.
“This form of ‘probabilistic analysis’, if properly applied, suggests strongly to me that the jury, acting reasonably, on the whole of the evidence in this case, ought to have had a reasonable doubt as to the applicant’s guilt.”
‘Proven cases of “false memory”’
Weinberg wrote that the victim’s testimony was unreliable.
In his summary, he said the victim “was inclined to embellish aspects of his account” and that “his evidence contained discrepancies [and] displayed inadequacies”.
In his judgment, he said: “On occasion, he seemed almost to ‘clutch at straws’ in an attempt to minimise, or overcome, the obvious inconsistencies between what he had said on earlier occasions, and what the objective evidence clearly showed.
“There are proven cases of ‘false memory’ of that kind, including, in particular, in relation to sexual offending. The recent decision of this court in Tyrrell provides a classic illustration of an apparently compelling witness whose account had to involve a substantial measure of complete fantasy.
“Nor can it be doubted that some complainants in cases involving sexual abuse, including of children, have fabricated their allegations. Just within the past few weeks, a major scandal involving false allegations of that kind has erupted in England, and received enormous publicity.
“Having had regard to the whole of the evidence led at trial, and having deliberated long and hard over this matter, I find myself in the position of having a genuine doubt as to the applicant’s guilt.”
Second incident ‘implausible’
In his summary, Weinberg that the second incident especially – where it was claimed Pell grabbed the victim’s genitals as he passed him in the corridor – was “entirely implausible”.
In his judgment he expanded: “It is clear that some sexual offenders commit their crimes in a manner that can properly be described as almost ‘breathtaking in its brazenness’. Teachers have been known to molest their pupils in the classroom, and even while in the presence of other students.
“Even so, the complainant’s account of the second incident seems to me to take brazenness to new heights, the like of which I have not seen.
“To be clear, as I have previously indicated, I see nothing inherently improbable in the allegation that a senior cleric, of whatever denomination, would sexually abuse a child. The findings of the royal commission into institutional responses to child sexual abuse represented a shocking indictment of clerical abuse in this country.
“[But] in the present case, as with so many others involving historical sexual offending, the devil is in the detail … There is, to my mind, a ‘significant possibility’ that the applicant in this case may not have committed these offences. That means that, in my respectful opinion, these convictions cannot be permitted to stand. The only order that can properly be made is that the applicant be acquitted on each charge.”
The divide over Portelli
In coming to that conclusion, Weinberg differed from Ferguson and Maxwell about the reliability of Portelli – as well as other witnesses for Pell.
The summary of the judgment said that the weight of other “cogent” and “impressive” evidence against the witness made the conviction unreasonable for Weinberg.
“If the complainant’s evidence was the only evidence, [Weinberg] might well have found it difficult to say that the jury, acting reasonably, were ‘bound’ to have a reasonable doubt about the cardinal’s guilt. [Weinberg] went on to note, however, that there was more than just the complainant’s evidence.
“In Justice Weinberg’s view there was a significant body of cogent and, in some cases, impressive evidence suggesting that the complainant’s account was, in a realistic sense, ‘impossible’ to accept.”
The animation and the video link
All three judges agreed that the appeal over the animation and the video link should be dismissed.
They wrote in their summary that “the animation bore little resemblance to the actual state of the evidence but rather presented a distorted picture of that evidence”.
“It showed the priests’ sacristy, with the complainant and the other boy in the room, in company with a large number of concelebrant priests. There was no evidence of any kind that this particular scenario had occurred.”
And they held that the word “presence” includes “presence by video link and did not require physical presence”.
By Naaman Zhou
Published in The Guardian
21 August 2019